Abstract

http://ssrn.com/abstract=2118570
 


 



The Proposal for a Regulation on a Common European Sales Law: Deficits of the Most Recent Textual Layer of European Contract Law


Horst Eidenmueller


University of Munich; University of Oxford

Nils Jansen


University of Muenster

Eva-Maria Kieninger


University of Wuerzburg

Gerhard Wagner


Humboldt University School of Law; Erasmus School of Law; University of Chicago Law School

Reinhard Zimmermann


Max Planck Institute for Comparative and International Private Law

May 1, 2012

Edinburgh Law Review, Vol. 16, No. 3, pp. 301-357, September 2012
Max Planck Private Law Research Paper No. 12/14

Abstract:     
On 11 October 2011, the European Commission published a Proposal for a Regulation on an optional Common European Sales Law (CESL). This text represents a milestone for the further development of European contract law. Our essay critically examines and evaluates the Commission’s proposal. It outlines the Commission’s draft as well as its background and deals with some of the most pressing doctrinal and policy issues raised by it. We show that the suggested range of application and the technical mode for opting into the CESL are flawed. Further, the CESL incorporates many elements and doctrines of the current acquis communautaire, such as unduly extensive information duties and withdrawal rights as well as a policing of standard contract terms, without reconsidering their proper purposes and uses. With respect to the rules on sales law, it is particularly the mandatory character of most of them that poses grave problems. We also demonstrate that the CESL’s optional character does not eliminate the quality concerns raised in this essay: The CESL might become a ‘success’ despite its shortcomings. Hence, notwithstanding its optional character, the proposed text should not be enacted. What is needed is a broad and thorough debate on the scope, forms and contents of contract law harmonization in Europe rather than the speedy legislative enactment of a flawed product.

Keywords: Common European Sales Law, European Contract Law, Harmonization of Laws, Regulatory Competition, Acquis Communautaire, Optional Instrument

Accepted Paper Series


Not Available For Download

Date posted: August 4, 2012 ; Last revised: August 31, 2012

Suggested Citation

Eidenmueller, Horst and Jansen, Nils and Kieninger, Eva-Maria and Wagner, Gerhard and Zimmermann, Reinhard, The Proposal for a Regulation on a Common European Sales Law: Deficits of the Most Recent Textual Layer of European Contract Law (May 1, 2012). Edinburgh Law Review, Vol. 16, No. 3, pp. 301-357, September 2012; Max Planck Private Law Research Paper No. 12/14. Available at SSRN: http://ssrn.com/abstract=2118570

Contact Information

Horst G. M. Eidenmueller
University of Munich ( email )
Institute for International Law
Veterinärstraße 5
Munich, 80539
Germany
+49 89 2180 3306 (Phone)
HOME PAGE: http://www.horst-eidenmueller.de
University of Oxford ( email )
Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom
Nils Jansen
University of Muenster ( email )
Institut für Rechtsgeschichte
Universitätsstraße 14-16
Münster, D-48143
Germany
Eva-Maria Kieninger
University of Wuerzburg ( email )
Domerschulstraße 16
Wuerzburg, 97070
Germany
+499313182300 (Phone)
+499313182888 (Fax)
Gerhard Wagner
Humboldt University School of Law ( email )
Unter den Linden 9
Berlin, 10099
Germany
Erasmus School of Law
3000 DR Rotterdam
Netherlands
University of Chicago Law School ( email )
1111 East 60th Street
Chicago, IL 60637
United States
Reinhard Zimmermann (Contact Author)
Max Planck Institute for Comparative and International Private Law ( email )
Mittelweg 187
Hamburg, 20148
Germany
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